An Appraisal Of The Role Of The ECOWAS Court Of Justice In The Protection Of Human Rights -By Oyetola Muyiwa Atoyebi & Lilian Eku

INTRODUCTION/BACKGROUND

The Community Court of Justice was created pursuant to the provisions of Articles 6 and 15 of the Revised Treaty of the Economic Community of West African States (ECOWAS).Its Organizational framework, functioning mechanism, powers, and the procedures applicable before it is set out in ProtocolA/P1/7/91 of 6 July 1991, Supplementary Protocol A/SP.1/01/05 of 19 January 2005, Supplementary Protocol A/SP.2/06/06 of 14 June 2006, Regulation of 3 June 2002, and Supplementary Regulation C/REG.2/06/06 of 13 June 2006.[1]

The desire towards the establishment of the ECOWAS Court of Justice and an economic community embracing all the states of the West African region was initiated in the early sixties. The Community Court of Justice of the Economic Community of West African States (ECOWASCOURT) is an increasingly active and bold adjudicator of human rights. Since acquiring jurisdiction over human rights complaints in 2005, the ECOWAS Court has issued numerous decisions condemning human rights violations by the member states of the Economic Community of West African States (Community).The ECOWAS COMMUNITY COURT OF JUSTICE is more like a ‘God sent’ to the West African community. At least justice can be manifestly seen to be served devoid of any nation’s political bias.

In this article, we shall look at how the ECOWASCourt functions, and especially the basic role they play in the protection of human rights.

COMPOSITIONOF THE COURT

The Court is composed of five (5) independent Judges who are persons of high moral character, appointed by the Authority of Heads of State of Government, from nationals of Member States, for a four-year term of office, upon recommendation of the Community Judicial council.

This article would focus on examining the role of the ECOWAS Community Court of Justice (ECCJ) in the protection of human rights in the West African sub-region specifically, under the ECOWAS Treaties of 1975 and the Revised Treaty of 1993.

JURISDICTION OF THE ECOWAS COMMUNITY COURT OF JUSTICE

The ECOWAS Community Court of Justice also known as CCJ jurisdiction is set out in Article 9 of the 1991 Protocol which states that the Court “shall ensure the observance of law and the principles of equity in the interpretation and application of the provisions of the Treaty.” The Court has ruled that this includes jurisdiction over human rights cases. This principle was codified by a 2005 ECOWAS Supplemental Protocol, which states that the CCJ has jurisdiction to hear human rights cases and expands the admissibility rules to include disputes between individuals and their own member states.

As a result of these amendments, the CCJ is thus four Courts in one:

1. an administrative tribunal for ECOWAS,
2. a human rights Court,
3. a Court of Arbitration,
4. and an Inter-State dispute resolution tribunal.

The Role ofECOWAS COMMUNITY COURT OF JUSTICE IN THE PROTECTION OF HUMAN RIGHTS

The Court can consider cases brought by:

• Individuals on application for relief for violation of their human rights
• Individuals and corporate bodies to determine whether their rights have been violated by an ECOWAS official
• Member states and the Executive Secretary, to bring an action against a state for failure to fulfiltreaty obligations
• Member states, the Council
• Member states, the Council of Ministers, and the Executive Secretary for determination of the legality of any action related to ECOWAS agreements
• ECOWAS staff who have exhausted remedies under ECOWAS Rules and Regulations; and
• Member states’ national Courts who may request to refer an issue related to the interpretation of ECOWAS agreements to the CCJ.

BASIC ROLES PLAYED BY THE ECOWASCOURT OF JUSTICE IN THE PROTECTION OF HUMAN RIGHTS.

It is not enough to simply say the ECOWAS Court of Justice helps in protecting human rights in the West African community. Here are some of the roles they play in protecting human rights in Nigeria:

• Ensure the observance of law and the principles of equity in the interpretation and application of the provisions of the treaty.
• Resolve disputes between subjects of international law and application of treaty provisions relating to regional economic integration.
• Provide adequate justice where needed.
• Hear cases against Member States of ECOWAS who have failed to fulfil their obligations under any law that is applicable in the Court.

CASES ADMINISTERED BY THE ECOWAS COMMUNITYCOURT OF JUSTICE.

The Court’s major human rights decisions have included a landmark 2008 ruling on slavery; Hadijatou Mani Koroua v. Niger in which the Court held the State of Niger responsible for failing to protect one of its citizens from enslavement by passively tolerating the practice. The case was the first ECOWAS ruling on slavery and only the second conviction made under Niger’s 2003 anti-slavery law. In the case, the applicant who was born to a mother in slavery, was sold to a local chief at age 12. For the next nine years, she was subjected to rape, violence, and forced labour without remuneration. When Niger’s Supreme Court failed to convict her “owner” under Article 270.1-5 of the Nigerien Criminal Code, which made slavery illegal in 2003. The ECOWAS Community Court of Justice having been informed, intervened and ruled that the applicant had been a slave under the definition in Article 1(1) of the Slavery Convention of 1926 and that failing to convict her former “owner”, Niger had not upheld its legal responsibility to protect her from slavery under international law.

REMEDIES AVAILABLE IN THE ECOWAS COMMUNITY COURT OF JUSTICE.

The ECOWAS instruments do not specify the remedies that the Court can provide. In past cases, remedies ordered by the Court included both awards of damages, as well as specific orders such as an order for the immediate release of an illegally detained journalist (see Manneh v. Gambia).

THE ENFORCEMENT OF THE COURT’S JUDGEMENT.

Decisions of the Court are final and binding under the 1991 Protocol. Member states and ECOWAS institutions must take all measures necessary to ensure the execution of the Court’s decision. Under Article 24 of the 2005 Protocol, the execution of a judgment of the Court must be in the form of a Writ of Execution, and the Chief Registrar is required to submit this Writ to the member state. The member state is required to execute the judgment according to its national Courts. The member state must also determine the national authority to execute the Court’s judgment and inform the Court of the relevant authority.

CONCLUSION

There is no gainsaying that the ECOWAS Community Court of Justice has been of immense benefit to us in this modern world. It is indeed a great sector of the ECOWAS. It has come to the aid of individuals whose rights are being infringed upon in their country or by the government in their country. However, the Court only assists in peculiar instances where it is manifestly seen that the individual has exhausted the judicial processes in their country and still wasn’t given justice or other peculiar circumstances as the Court may deem fit.

SNIPPET

The ECOWAS Community Court of Justice also known as CCJ jurisdiction is set out in Article 9 of the 1991 Protocol which states that the Court “shall ensure the observance of law and the principles of equity in the interpretation and application of the provisions of the Treaty.”

KEYWORDS: ECOWAS, Court, justice, human rights, slavery, country.

AUTHOR: Oyetola Muyiwa Atoyebi, SAN

Mr Oyetola Muyiwa Atoyebi, SAN is the Managing Partner of O. M. Atoyebi, S.A.N & Partners (OMAPLEX Law Firm).

Mr. Atoyebi has expertise in and vast knowledge of Human Right Law Practice and this has seen him advise and represent his vast clientele in a myriad of high-level transactions.  He holds the honour of being the youngest lawyer in Nigeria’s history to be conferred with the rank of Senior Advocate of Nigeria.

He can be reached at atoyebi@omaplex.com.ng

CONTRIBUTOR: Lilian Eku

Lilian is a member of the Dispute Resolution Team at OMAPLEX Law Firm. She also holds commendable legal expertise in Human Right Law Practice

She can be reached at lilian.eku@omaplex.com.ng

[1]ECOWAS Community Court of Justice.